What is Fourth Amendment contraband?

• Author: Adams, Ben

Table of Contents Introduction I. The Place/Jacobsen Framework A. Origin of the Doctrine: Place and Jacobsen B. The Place/Jacobsen Three-Step Test: Access, Intrusiveness, and Exposure C. Accuracy Is Not a Factor in the Contraband-Only Doctrine D. The Place/Jacobsen Three-Step Test as It Has Been Applied 1. Access 2. Intrusiveness 3. Exposure II. What Is Fourth Amendment Contraband? A. Contraband Defined by Substantive Criminal Law B. Contraband Defined by Circumstances Known to the Police in Advance III. Applying the Theory of Anticipatory Contraband to New Technologies A. Narcotics Detection Technologies 1. Electronic sniffers 2. Prescription drug-sniffing dogs B. Weapons Detection Technologies 1. Anthrax screening of mail 2. Radiological sensors 3. Gun detectors C. Child Pornography Detection Technologies D. Derivative Contraband and Stolen Property Detection Technologies 1. Wardriving 2. Credit card swipes E. Alcohol Detection Technologies IV. Implications and Unresolved Questions A. Who Decides When Something Is Contraband? B. State Versus Federal Conclusion Introduction

A police officer drives up and down a suburban street, using a laptop and an antenna to peer into every home he passes to look for the telltale signal of a stolen cell phone. A forensic investigator examines a confiscated hard drive, using a computer program to check every file and folder for child pornography without looking at a single image or watching a single video. A trained dog is deployed during a traffic stop, looking for evidence of prescription- strength opiates. Law enforcement personnel are increasingly turning to new technologies and techniques to uncover contraband goods. As this technology proliferates, courts must decide whether and when the use of this technology constitutes a "search" under the Fourth Amendment. (1)

Since 1983, the Supreme Court has recognized what has sometimes been called the "contraband exception" or the "contraband-only doctrine" of the Fourth Amendment. (2) Under this doctrine, the Court has held that an investigative technique that does no more than expose the existence of "contraband" is not a search within the meaning of the Fourth Amendment. (3) So far, this doctrine has been applied to only two methods of detection: trained drug-sniffing dogs and a chemical test capable of identifying a small sample of narcotics. (4)

In 1984, Justice Brennan dissented in one of the earliest Supreme Court cases to address the contraband-only doctrine and wrote about a future in which technological advances would greatly expand the power of the police to conduct indiscriminate searches under the contraband-only doctrine. (5) As he warned:

[I]f a device were developed that, when aimed at a person, would detect instantaneously whether the person is carrying cocaine, there would be no Fourth Amendment bar, under the Court's approach, to the police setting up such a device on a street corner and scanning all passersby. In fact, the Court's analysis is so unbounded that if a device were developed that could detect, from the outside of a building, the presence of cocaine inside, there would be no constitutional obstacle to the police cruising through a residential neighborhood and using the device to identify all homes in which the drug is present. (6) Those devices exist today. Not with cocaine, perhaps, but today's technology is nonetheless capable of detecting a wide variety of "contraband." Instead of detecting cocaine, the police can point a device at a person walking down a city street and determine whether he is carrying a gun, (7) and they can detect the presence of a stolen cell phone inside a home by doing nothing more than "cruising through a residential neighborhood." (8) As technology advances, the number of investigative technologies that purport to detect only contraband will increase further. Digital "hash" searches for child pornography, (9) remote gun detectors, (10) and "electronic sniffers" (11) all potentially fall within the contraband-only doctrine. Because the Court has interpreted contraband-only devices as not implicating the Fourth Amendment at all, the police could potentially employ these devices broadly, without the need for probable cause or even reasonable suspicion of wrongdoing.

Courts confronting these technological developments have struggled to define the scope of the contraband-only doctrine. In United States v. Bah, for example, the Sixth Circuit considered the judicial split on whether a swipe of a credit card suspected to be fraudulent falls under the contraband-only doctrine. (12) Other circuits have similarly confronted the legitimacy of warrantless "hash" searches for child pornography (13) and tracking illicit wireless signals. (14)

Although academic commentators and courts have begun to work through these novel applications of the contraband-only doctrine, (15) they have ignored the broader question lurking underneath the doctrine: What exactly is Fourth Amendment "contraband"? And when is a search properly considered "contraband only"? So far, courts and commentators have considered these questions briefly or not at all, without articulating any consistent definition of "contraband" or any method of determining whether a particular technology meets the requirements of the contraband-only doctrine. (16)

This Note is the first to take up those questions in detail. Part I begins by suggesting a framework for understanding the doctrine as it has been applied by the Supreme Court since United States v. Place (17) and United States v. Jacobsen. (18) Although the Court has not yet articulated a clear test for whether a particular investigative technique qualifies as "contraband only," its decisions reveal three necessary criteria: (l) police must have lawful access to the place or thing to be analyzed; (2) the technique must not be overly intrusive on Fourth Amendment interests other than privacy; and (3) the technique must not be capable of exposing any facts to which a person has a "legitimate" right to privacy (in other words, noncontraband). Part I illustrates how these criteria have thus far allowed the Court to limit the spread of the contraband-only doctrine in cases like Florida v. Jardines, (19) Missouri v. McNeely, (20) and Kyllo v. United States. (21) Yet, critically, these cases reveal that the three-part analysis usually used by the Court in contraband-only cases is missing a crucial preliminary inquiry: What counts as "contraband" such that the contraband-only doctrine applies at all?

This question is more difficult than it first appears. Consider handguns, for instance. A naive view of the "what is contraband?" question might demand a binary answer--either handguns are contraband or they are not. In the context of gun ownership, however, arriving at a simple "yes" or "no" answer is fraught with complications. For some people and in some places, possession of a handgun may indeed be illegal. (22) But inside the home, or for individuals with a concealed carry permit, possession may not only be legal but protected by the Second Amendment. (23)

Part II offers an answer to this question, exploring what it means for a particular material to be "contraband" for purposes of the Fourth Amendment. It sets forth the foundation of a new theory of Fourth Amendment contraband that this Note terms "anticipatory contraband." Under a theory of anticipatory contraband, Fourth Amendment contraband is defined as "any material or information for which police and investigators know in advance there is no lawful right to private possession under the circumstances." This definition requires inquiry into not only whether possession is illegal as a matter of substantive criminal law but also whether police officers and investigators know in advance, given all the circumstances, that there is no legitimate right to private possession (hence "anticipatory" contraband).

Under this theory, it would not be enough for the police using handgun detection technology to discover afterwards that a particular person's possession of a handgun was in fact unlawful under the circumstances. Anticipatory contraband would require that the police establish before deployment of the technology that there is no lawful right to private possession of a handgun under the circumstances. Otherwise, the police have no way of knowing whether use of the technology could compromise a legitimate expectation of privacy.

Part III combines the lessons from Parts I and II to illustrate how a theory of anticipatory contraband illuminates the Court's existing contraband-only doctrine. This application shows that while the contraband-only doctrine might apply to a variety of new technologies, law enforcement's ability to effectuate warrantless searches remains limited. Finally, Part IV discusses some of the implications and unresolved questions of the theory of anticipatory contraband for courts and law enforcement officials considering new and old technologies under the contraband-only doctrine.

1. The Place/Jacobsen Framework

   1. Origin of the Doctrine: Place and Jacobsen

      The Supreme Court first recognized the contraband-only doctrine in the 1983 case United States v. Place. (24) Generally, the Fourth Amendment protects "the people ... against unreasonable searches and seizures" and provides that "no Warrants shall issue, but upon probable cause." (25) While not strictly dictated by the text of the amendment, the Court has held that outside special circumstances, "searches" are per se unreasonable without "prior approval" from a judge in the form of a warrant. (26) Not all police actions, however, constitute "searches" for the purposes of the Fourth Amendment. For instance, the police may fly over private property and make naked-eye observations of a home without conducting a Fourth Amendment "search." (27)

      In Place, the Court held that an investigative technique that can do no more than reveal the presence of...